Gender reassignment discrimination

Published: 22 December 2021

Last updated: 23 February 2023

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What countries does this apply to?

  • England
  • Scotland
  • Wales

On this page we have used plain English to help explain legal terms. This does not change the meaning of the law.

The Equality Act 2010 uses the term ‘transsexual’ for individuals who have the protected characteristic of gender reassignment. We recognise that some people consider this term outdated, so we have used the term ‘trans’ to refer to a person who has the protected characteristic of gender reassignment. However, we note that some people who identify as trans may not fall within the legal definition.

This page is subject to updates due to the evolving nature of some of the issues highlighted. 

This is when you are treated differently because you are trans in one of the situations covered by the Equality Act. The treatment could be a one-off action or as a result of a rule or policy. It doesn’t have to be intentional to be unlawful.

There are some circumstances when being treated differently due to being trans is lawful. These are explained below.

What the Equality Act says about gender reassignment discrimination

The Equality Act 2010 says that you must not be discriminated against because of gender reassignment.

In the Equality Act, gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign your sex.

To be protected from gender reassignment discrimination, you do not need to have undergone any medical treatment or surgery to change from your birth sex to your preferred gender.

You can be at any stage in the transition process, from proposing to reassign your sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not you have applied for or obtained a Gender Recognition Certificate, which is the document that confirms the change of a person's legal sex. 

For example, a person who was born female and decides to spend the rest of their life as a man, and a person who was born male and has been living as a woman for some time and obtained a Gender Recognition Certificate, both have the protected characteristic of gender reassignment. 

Different types of gender reassignment discrimination

There are four types of gender reassignment discrimination.

Direct discrimination

Direct discrimination happens when someone treats you worse than another person in a similar situation because you are trans.

Example –

You inform your employer that you intend to spend the rest of your life living as the opposite sex. If your employer alters your role against your wishes to avoid you having contact with clients, this would be direct gender reassignment discrimination.

The Equality Act says that you must not be directly discriminated against because:

  • you have the protected characteristic of gender reassignment. A wide range of people identify as trans. However, you are not protected under the Equality Act unless you have proposed, started or completed a process to change your sex.
  • someone thinks you have the protected characteristic of gender reassignment. For example, because you occasionally cross-dress or do not conform to gender stereotypes (this is known as discrimination by perception).
  • you are connected to a person who has the protected characteristic of gender reassignment, or someone wrongly thought to have this protected characteristic (this is known as discrimination by association).

Absences from work

If you are absent from work because of your gender reassignment, your employer cannot treat you worse than you would be treated if you were absent:

  • due to an illness or injury.

Example –
 

Your employer cannot pay you less than you would have received if you were off sick.

  • due to some other reason - however, in this case it is only discrimination if your employer is acting unreasonably.

Example –
 

If your employer would agree to a request for time off for someone to attend their child’s graduation ceremony, then it may be unreasonable to refuse you time off for part of a gender reassignment process. This would include, for example, time off for counselling.

Indirect discrimination

Indirect discrimination happens when an organisation has a particular policy or way of working that puts people with the protected characteristic of gender reassignment at a disadvantage. Sometimes indirect gender reassignment discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the discrimination. This is known as objective justification.

Example –

An employer has a practice of starting induction sessions for new staff with an ice-breaker designed to introduce everyone in the room to each other. Each worker is required to provide a picture of themselves as a toddler. One worker is a trans woman who does not wish her colleagues to know that she was brought up as a boy, so she does not bring her photo and is criticised by the employer in front of the group for not joining in. The same approach is taken for all new staff, but it puts people with the protected characteristic of gender reassignment at a particular disadvantage. 

This would be unlawful indirect discrimination unless the employer could show that the practice was justified.

Harassment

Harassment is when someone makes you feel humiliated, offended or degraded for reasons related to gender reassignment.

Example – 

A person who has undergone male-to-female gender reassignment is having a drink in a pub with friends and the landlord keeps calling her ‘sir’ or ‘he’ when serving drinks, despite her complaining about it.

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from harassing you, you will not be able to make a claim for harassment against the organisation, only against the harasser.

Victimisation

Victimisation is when you are treated badly because you have made a complaint of gender reassignment discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of gender reassignment discrimination.

Example –

A person proposing to undergo gender reassignment is being harassed by a colleague at work. He makes a complaint about the way his colleague is treating him and is sacked.

Circumstances when being treated differently due to gender reassignment is lawful

A difference in treatment may sometimes be lawful. This will be the case where the circumstances fall under one of the exceptions in the Equality Act that allow organisations to provide different treatment or services on the basis of gender reassignment.

Examples – 
 

The organisers of a women’s triathlon event decide to exclude a trans woman with a Gender Recognition Certificate as they think her strength or stamina gives her an unfair advantage. However, the organisers would need to be able to show that this was necessary to make the event fair or safe for everyone.

A service provider provides single-sex services. The Equality Act allows a lawfully established separate or single-sex service provider to prevent, limit or modify people’s access on the basis of gender reassignment in some circumstances. However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present will be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether or not the person has a Gender Recognition Certificate.

Updated: 23 Feb 2023

  • Removed paragraph on language recommendations made by Women and Equalities Committee (WEC) in 2016
  • Removed the term ‘transsexual’ as per WEC 2016 recommendations
  • Added paragraph explaining use of plain English in the guidance
  • Removed a paragraph on intersex people not being explicitly protected from discrimination by the Equality Act

Page updates

Published:

22 December 2021

Last updated:

23 February 2023

Advice and support

If you think you might have been treated unfairly and want further advice, you can contact the Equality Advisory and Support Service (EASS).

The EASS is an independent advice service, not operated by the Equality and Human Rights Commission.

Phone: 0808 800 0082
 

Or email using the contact form on the EASS website.
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